Does the HOD in Department of Education have powers to override policy decisions of governing bodies?

2013-07-10 19:55

Prefatory background

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In 2008 and 2009 the governing bodies of Welkom High School and Harmony High School respectively adopted pregnancy policies that provide for the exclusion of pregnant learners from school for certain time-periods. This led to two girls being excluded on grounds of pregnancy.

HOD issued instructions to the principals of the schools to readmit two learners who had been excluded from school in terms of the pregnancy policies. This was refused requiring the Courts to intervene.

The first skirmish between the governing bodies and the Department of Education took place the Free State High Court, Bloemfontein (High Court) where the governing bodies/respondent schools sought to interdict the HOD from interfering with the implementation of their policies. The High Court granted the interdict, which was confirmed by the Supreme Court of Appeal. The High Court and the Supreme Court of Appeal reasoned that the HOD did not have authority to instruct the principals of their policies. The High Court granted the interdict, which was confirmed by the Supreme Court of Appeal. The High Court and the Supreme Court of Appeal reasoned that the HOD did not have authority to instruct the principals

The matter came by way of appeal before the Constitutional Court in

Head of Department, Department of Education, Free State Province v Welkom High School and Another; Head of Department, Department of Education, Free State Province v Harmony High School and Another [2013] ZACC 25

Which way would the Constitutional Court decide? Quite rightly,the CC dismissed the appeal. Why?

First, lets look at what it was asked to do. The CC was required to answer the question as to whether the Head of a Provincial Department of Education had the power lawfully to instruct the principal of a public school to ignore a policy promulgated by the school’s governing body when he or she (the Head of Department) is of the opinion that that policy is unconstitutional.

The Judgment of the Constitutional Court

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The CC was split on the matter. In other words it was nota unanimous decision.

The majority judgment per Judge Khampepe ,with whom Moseneke DCJ and Van der Westhuizen J concurred, dismissed the appeal. It held that , as a matter of legality, supervisory authority must be exercised lawfully in accordance with the Schools Act. The Court concluded that, because the HOD had purported to override school policies without following the relevant procedures set out in the Schools Act, he had acted unlawfully. The interdict was therefore correctly granted.

Khampepe J acknowledged that the respondent schools’ pregnancy policies at face-value infringe upon the constitutional rights of pregnant learners, including the rights to human dignity, to freedom from unfair discrimination and to receive a basic education.

In order to address these concerns, she ordered the schools to review the policies in the light of the requirements of the Constitution, the Schools Act and the considerations set out in the judgment. She further ordered that the schools meaningfully engage with the HOD in the process of reviewing their policies, according to the principles of cooperative governance enshrined in the Schools Act.

The minority led by Judge Zondo who wrote the dissenting judgment, in which Mogoeng CJ, Jafta J and Nkabinde J concurred, argued that they would have upheld the appeal. They viewed that the Governing bodies’ learner pregnancy policies were unconstitutional in that the exclusion of a pregnant learner from school as envisaged in the policies unjustifiably infringed the right to a basic education and equality.

Zondo J also held that the exclusions were unlawful because they constitute a suspension or expulsion of the learner from school by the governing body. This is in breach of the Schools Act. The HOD was therefore not only entitled but obliged to take steps to prevent the principals, who are his employees and representatives in the school, from enforcing the policies.

My take

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Was the majority decision appropriate? I answer in the affirmative. Why?The CC was not seized with the constitutionality of the policy of the governing body but with the principle of the rule of law.Could a public official override policies of governing bodies that they could pass? No

The CC needed to determine what the Schools Act empowers an HOD to do when faced with policies adopted by school governing bodies that prima facie (on the basis of the HOD’s analysis) offend the Constitution and the Schools Act. For just as school governing bodies are obliged to act in accordance with the Schools Act, so is an HOD. The majority was of the opinion that the Schools Act does not empower an HOD to act as if policies adopted by a school governing body do not exist. Rather, the Act obliges the HOD to engage in a comprehensive consultative process with the relevant governing body regarding the particular policies and then, if there are reasonable grounds for doing so, to take over the performance of the particular governance or policy-formulation function in terms of section 22,63 in order to give effect to the relevant constitutional rights and the objectives of the Schools Act. Of course, the other avenue always open to an HOD is to approach the courts for appropriate relief, for instance to obtain an urgent interdict in respect of the application of the policies or to have the policies reviewed and set aside.

So now what happens?

________________

The Court was of the view that the governing bodies seriously engage with all sake holders with the view of bringing into line with the provisions of the Constitution and this ,I submit was a rational and responsible way out.

Saber Ahmed Jazbhay

Wednesday 10.7.2013

Follow me on twitter @jazlaw24

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